eCite Digital Repository

A comparative review of national legislation for the indefinite detention of ‘Dangerous Criminals’, Tasmanian Law Reform Institute Research Paper No 4

Citation

Ketelaar-Jones, Taya and Cockburn, H and Barns, G and Henning, T, A comparative review of national legislation for the indefinite detention of Dangerous Criminals', Tasmanian Law Reform Institute Research Paper No 4, Tasmanian Attorney-General's Departmen, Tasmania, July (2017) [Contract Report]

Abstract

Courts in Tasmania have long had the power to detain prisoners indefinitely. The Tasmanian dangerous
prisoner regime, contained in the Sentencing Act 1997 (Tas), has never been reviewed. This is despite
it receiving criticism from various quarters, including the Supreme Court bench. There are several
differences between the Tasmanian indefinite detention provisions and those of other Australian
jurisdictions. The implications of these legislative anomalies have not been explored. This paper
examines the operation of the Tasmanian scheme by undertaking a cross-jurisdictional analysis of
dangerous prisoner legislation in Australia. Problematic aspects of the current provisions are examined,
and potential areas for reform are identified. This is done so with a view to the modernisation of the law
and a shift towards uniformity with other Australian jurisdictions.

This paper first provides a brief history of indefinite detention regimes and outlines the nature of the
exercise of the discretion to impose an indefinite sentence. The paper proceeds with an assessment of
the various problematic aspects of the Tasmanian indefinite detention regime contained in the
Sentencing Act 1997 (Tas). The first section considers the issues associated with the making of a
dangerous criminal declaration, including the test and standard of proof for imposition of a declaration
and whether separate indefinite detention provisions applying specifically to sex offenders should be
introduced. The paper recommends that the test for the imposition of a declaration in the Sentencing
Act 1997 (Tas) be amended to reflect the common law test. In addition, it recommends that the Act
should explicitly provide for the standard of proof and provide a comprehensive and mandatory list of
factors to be considered when determining whether to make a dangerous criminal declaration. Further,
the Act should be amended to clarify that it is intended to operate as a post-sentence preventative
detention regime, as well as an indefinite (at the time of sentencing) regime. Finally, the introduction
of separate indefinite detention provisions for sex offenders is not recommended.

The second section considers the issues associated with the discharge of a dangerous criminal
declaration. Key issues discussed in this section are the test for the discharge of a dangerous criminal
declaration, the inability of the court to impose conditions upon discharge, and the absence of provisions
for periodic review of a declaration. The key recommendations are that the Sentencing Act 1997 (Tas)
be amended to mandate a system of periodic review of a dangerous criminal declaration. On a review
of a declaration, or on an application for discharge of a declaration, the prosecution (rather than the
offender) should retain the onus of proof. The assessment should be guided by the same principles
applicable to the exercise of the discretion to impose the declaration at first instance. Finally, the court
should be empowered to impose conditions upon the discharge of a dangerous criminal declaration.